Abstract
The EPPO Regulation displays a complex picture in which unprecedented procedural mechanisms coexist with traditional arrangements, such as the view of a public prosecutor’s office as an independent body of justice giving rise to a number of new problems from the perspective of the fundamental rights of the individuals involved in the inquiry of the EPPO. Issues as how fundamental safeguards should be ensured in the proceedings conducted by the European prosecutorial authority, the decision to drop the case, or the distribution of the investigative competences and the reallocation of the case highlight new problems that mainly derive from the concentration of considerable decision-making powers in the hands of Permanent Chambers.
This discussion, while calling for confrontation of the new rules with constitutional law, as well as with the European Convention and EU law, raises a systematic problem, namely whether fundamental constitutional-law safeguards should also be ensured across borders ratione personae. The examination of this problem from the angle of the EPPO’s inquiry enhances the need for an understanding of cross-border investigation and prosecution that aims at ensuring full respect for the main criminal law and criminal justice rights of the individuals concerned.
Stefano Ruggeri is Professor of Italian and European Criminal Justice at the University of Messina.
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Notes
- 1.
COM(2013) 534 final.
- 2.
On the one hand, the EPPO’s competence does not cover the overall area of the offences affecting the EU financial interests. Thus, concerning intentional acts or omissions having cross-border dimension in the field of revenue arising from VAT own resources, the European prosecutorial authority only has competence for those conducts “connected with the territory of two or more Member States and involve a total damage of at least EUR 10 million”. See Art. 22(1) RegEPPO. On the other, the competence of the EPPO exceeds the scope of application of the PIF Directive, being extended to offences regarding participation in a criminal organisation as defined in Framework Decision 2008/841/JHA, as implemented in national law, if the focus of the criminal activity of such a criminal organisation is to commit one of the PIF offences, as well as any other criminal offence that is inextricably linked to criminal conduct that falls within the scope of such offences. Cf. Art. 22(2-3) RegEPPO. See further, Vilas Álvarez, in this same volume.
- 3.
Legal scholarship has already deeply examined the EPPO Regulation. See among others the contributions published in No. 3/2017 of Eucrim, which specifically deals with this legal instrument.
- 4.
Recital No. 13 RegEPPO.
- 5.
Art. 34 RegEPPO.
- 6.
Recital No. 14 RegEPPO.
- 7.
Art. 8(1-2) RegEPPO. On the structure of the EPPO see Martínez Santos, in this same volume.
- 8.
Arts. 8(4) e 13(1) RegEPPO.
- 9.
Art. 41(2) RegEPPO.
- 10.
Art. 24(2) RegEPPO. On the right to evocation, see Satzger, in this volume.
- 11.
Art. 26(1) RegEPPO.
- 12.
Art. 26(3) RegEPPO.
- 13.
Art. 26(1) RegEPPO. For the analysis of the CMS I refer to Pérez Enciso, in this volume.
- 14.
Recital No. 47 RegEPPO.
- 15.
Arts. 347 et seqq. CCP-Italy. It is noteworthy that since 1992 the police can carry out autonomous investigations even after the prosecutor has taken over the leadership of the case See Art. 348(1) CCP-Italy.
- 16.
At first glance, Article 7 of Directive 2016/343/EU may seem to ensure the right to silence only to those who have already assumed the formal status of suspects. On close examination, the link between the privilege against self-incrimination and the right to legal assistance is so strict that the former safeguard must be granted within the limits laid down by the latter. See Recital 21 of Directive 2013/48/EU.
- 17.
Recital 21 and Art. 2(3) of Directive 2013/48/EU (hereafter, DAL).
- 18.
For a similar remark see Bachmaier Winter (2013), p. 114.
- 19.
Recital 21 DAL.
- 20.
Art. 63(1) CCP-Italy.
- 21.
Art. 63(2) CCP-Italy.
- 22.
Art. 37(1) RegEPPO.
- 23.
Art. 37(2) RegEPPO.
- 24.
It is true that the European Convention stands out among other human rights charters for ensuring that the person ‘charged’ with an offence has the right to be informed of the ‘accusation’. It would probably be reductive, however, to interpret this terminological distinction as limiting this informational safeguard to the decision to bring the individuals concerned to court with a formal indictment (in this sense see instead Trechsel 2005, pp. 198 f.). This interpretation, moreover, does not seem to reflect the approach followed by Strasbourg case-law, which for almost 30 years has acknowledged the right to information on the charge in relation to a number of investigative acts interfering with fundamental rights. See among others ECtHR, Brozicek v. Italy, 19 December 1989, Appl. No. 10964/84.
- 25.
Art. 6 DICP.
- 26.
Art. 41(2)(b) RegEPPO.
- 27.
ECtHR, Saunders v. United Kingdom, 17 December 1996, Appl. No. 19187/91.
- 28.
ECtHR, Al-Khawaja and Tahery v. United Kingdom, 15 December 2011, Appl. No. 26766/05 and 22228/06.
- 29.
Art. 16(1) PRegEPPO.
- 30.
- 31.
Art. 16(2) PRegEPPO.
- 32.
Art. 27(4)(c) PRegEPPO.
- 33.
Art. 27(4) PRegEPPO.
- 34.
On the choice of forum see extensively Panzavolta, in this volume.
- 35.
Art. 26(4) RegEPPO.
- 36.
Art. 26(4)(a-c) RegEPPO.
- 37.
- 38.
Böse (2013), pp. 73 ff.
- 39.
A number of comparative-law surveys have highlighted the increasing exercise of territorial jurisdiction due to several factors. Doubtless the widespread acknowledgment of the principle of ubiquity contributes to this result, justifying the application of domestic criminal law indifferently on grounds that the alleged perpetrator acted, or the result of his criminal action took place, on national territory. This approach, although being justified by the need to avoid dangerous areas of impunity, increases the risk of transnational conflicts of jurisdiction. Another factor that contributes to the extension of territorial jurisdiction across borders is the broadening of the notion of the ‘result’ of a criminal action mostly in relation to specific types of crimes. For instance, in the case of omission, the offence is widely considered to have been committed on national territory if the alleged offender should have acted there. Among the comparative-law studies that have dealt with this issue see Sinn (2012), pp. 515 ff.; Böse et al. (2013), pp. 412 ff. For further references to the aforementioned tendency to broaden territorial jurisdiction cf. also Ruggeri (2013), pp. 504 ff.
- 40.
Cf., in Italy, Supreme Court, 2nd Section, 7 July 1999, Cohau, in MCP 212974. Moreover, the widespread lack of a clear definition of the contribution that participants should have made to the alleged offence on a national territory often leads to the activation of the territorial jurisdiction in relation to all participants pursuant to the model of the so-called Gesamtlösung. It is noteworthy, however, that some European countries have elaborated a number of procedural mechanisms to compensate for this tendency. For instance, German law, in the framework of a complex set of rules governing the discretionary initiation of a criminal prosecution (Opportunitätsregelungen), allows for public prosecutors not to bring defendants to court even in relation to relevant conducts with Inlandsbezug. Thus, according to § 153c par. 1 n. 3 StPO, the competent prosecutor can dispense with prosecuting the offences of §§ 129 e 129a StGB (forming criminal organisations and terrorist organisations), where the group does not (or does not mainly) exist in Germany and the participatory acts committed in Germany are of lesser importance or are limited to mere membership.
- 41.
Art. 26(5)(a-b) RegEPPO.
- 42.
Constitutional Court, judgment of 3 July 1962 No. 88, in www.cortecostituzionale.it. On the evolution of Italian constitutional case law since this ruling see among others Di Chiara (2003), pp. 224 f.
- 43.
Art. 26(5) RegEPPO.
- 44.
Art. 10(1) RegEPPO.
- 45.
In Italy, a widespread understanding of the public prosecutor as an independent body of justice under the 1930 code dominated the structure of the intermediate phase in the proceedings in which he headed the pre-trial taking of evidence. Thus, while investigative judges carried out a formal inquiry (istruzione formale), prosecutors conducted an interim one (istruzione sommaria). This approach long justified the lack of defence rights and the failure to involve lawyers in the investigative activities carried out by the public prosecutor and the police. On the shortcomings of this view of the public prosecution and the former istruzione sommaria see among others Cordero (1966), pp. 3 ff.; Chiavario (1971), pp. 714 ff.
- 46.
Art. 42(1) RegEPPO.
- 47.
Recital No. 87 RegEPPO.
- 48.
Ibid.
- 49.
In favour of this solution Giuffrida (2017), pp. 153 f.
- 50.
Art. 42(1) RegEPPO.
- 51.
See Recital 13 PRegEPPO and 69 RegEPPO. It is worth observing, however, that the proposal contained a binding provision in this respect—namely, Article 18(6)—that was not reproduced in the final text.
- 52.
Art. 26(1) PRegEPPO.
- 53.
Art. 26(3) PRegEPPO.
- 54.
Art. 26(4) PRegEPPO.
- 55.
Art. 26(5) PRegEPPO.
- 56.
Recital 11 PRegEPPO. On close examination, the proposed rules were not fully consistent with the legislative intentions, since some of the measures for which the requirement of judicial authorisation was submitted to lex loci (e.g., seizure of objects needed as evidence, controlled deliveries of goods, targeted surveillance in public places) entailed unquestionable interference with the fundamental rights of the suspect and of third parties. It is worth noting that that Recital No. 29 of the 2013 proposal somewhat smoothed the requirement set forth in Recital 11 by circumscribing the strict need for judicial authorisation only to “certain coercive investigative measures”.
- 57.
Art. 30(1) PRegEPPO. See also Allegrezza et al. (2016), pp. 157 ff.
- 58.
Art. 30(2) PRegEPPO.
- 59.
Art. 37(1) RegEPPO. On the admissibility of evidence, see extensively Allegrezza in this volume.
- 60.
Art. 30(1) RegEPPO.
- 61.
Art. 30(2-3) RegEPPO.
- 62.
Art. 31(3) RegEPPO.
- 63.
See Recital 18 RegEPPO.
- 64.
Art. 31(5) RegEPPO. On this issue, see above Bachmaier Winter, in this volume.
- 65.
Art. 31(8) RegEPPO.
- 66.
Art. 32 RegEPPO.
- 67.
Art. 4(1) EU-CMACM.
- 68.
Art. 9(2) DEIO.
- 69.
Art. 5(1) FD-FOPE.
- 70.
Art. 9(2) RegEPPO.
- 71.
Art. 41(3) RegEPPO.
- 72.
Ibid.
- 73.
Nestler (2006), pp. 415 ff.
- 74.
Art. 35(1) RegEPPO.
- 75.
Ibid.
- 76.
Ibid.
- 77.
Art. 35(2) RegEPPO.
- 78.
Art. 35(1) RegEPPO.
- 79.
Art. 10(3)(a-b) RegEPPO.
- 80.
In this regard, we can observe a terminological difference between some linguistic versions of the Regulation. The Italian text, similarly to those of other Romance languages, relates to the ‘principio di legalità’, which is however not the principle of mandatory prosecution, but the principle of nulla poena, nullum crimen sine lege. Of course, there is a strict link between these two principles, and to a great extent the former should be seen as the procedural projection of the latter, which takes effect, however, in the field of substantive criminal law.
- 81.
Recital No. 66 RegEPPO.
- 82.
Ibid.
- 83.
Recital No. 81 RegEPPO.
- 84.
Ibid.
- 85.
Cf. § 152 StPO.
- 86.
See §§ 153 et seqq. StPO.
- 87.
Art. 112 Const.-Italy.
- 88.
Thus, the proceedings could only be terminated in cases of manifestly insufficient charges. See Art. 74(3) CCP-Italy (1930 version).
- 89.
Ibid.
- 90.
This only happened after the fall of the fascist regime by means of Royal Legislative Decree 511/1946.
- 91.
Art. 74(3) CCP-Italy (1944 version).
- 92.
Thus, investigative judges were not responsible for procedural safeguards under the former Italian code, but held prosecutorial powers and, as noted, headed the gathering of evidence prior to the trial stage.
- 93.
Ass. cost., ad. plen., sed. 27 November 1947.
- 94.
Ibid. See Di Chiara (2003), pp. 239 f.
- 95.
- 96.
Art. 111(3) Const.-Italy.
- 97.
Art. 111(2) Const.-Italy.
- 98.
Art. 6(2) RegEPPO.
- 99.
Art. 7(1) RegEPPO.
- 100.
Art. 410-bis(1-2) CCP-Italy.
- 101.
Art. 410-bis(3) CCP-Italy.
- 102.
Thus, where the EPPO’s competence is extended to offences that, although not affecting the EU’s financial interests, are inextricably linked to PIF offences, national authorities can request the Permanent Chamber to refer the case to them, and the Chamber is required to do so without delay. On close examination, this exception is only apparent, as it presupposes that the EPPO has already decided to dismiss the case. In other words, the decision still lies with the Permanent Chamber, which is only called upon to consult the domestic authority before ordering the termination of the proceedings. See Art. 39(3) RegEPPO.
- 103.
Art. 39(4) RegEPPO.
- 104.
Recitals Nos. 43-44 DVR. On the rights of the victim in the event of non-prosecution and a comparative-law analysis of the solutions provided by the Italian code before the 2017 reform and German procedural law see Alvaro and D’Andrea (2015), pp. 313 f.
- 105.
Recital No. 78 RegEPPO.
- 106.
In this sense see already Ross (1929).
- 107.
Art. 415-bis CCP-Italy.
- 108.
For instance, Article 453(1) CCP-Italy requires the competent prosecutor to summon the suspect to a special questioning before requesting a so-called “immediate procedure”, aimed at the direct institution of the trial without the intermediate phase.
- 109.
Art. 10(3) RegEPPO.
- 110.
Cf. Constitutional Court, judgments 61/1967 and 84/1979, in www.cortecostituzionale.it.
- 111.
See especially Chiavario (1975), pp. 896 ff.
- 112.
The 1989 Rules Implementing the Code of Criminal Procedure repealed all the legislative provisions providing for prosecution by bodies other than the public prosecutor. See Art. 231 of Legislative Decree 271/1989.
- 113.
Art. 21 et seqq. Legislative Decree 274/2000. It is doubtful, however, whether this legal action can be viewed as a private prosecution. See Marzaduri (2016), pp. 1121 ff.
- 114.
Art. 90(1) Const.-Italy.
- 115.
Art. 90(2) Const.-Italy.
- 116.
Art. 27(5) RegEPPO.
- 117.
Art. 35(3) RegEPPO.
- 118.
Ibid.
- 119.
Recital No. 87 RegEPPO.
- 120.
CJEU, judgment of 27 February 2013, Melloni v. Ministerio Fiscal, C-399/11. In this regard see among others Bachmaier Winter (2016), pp. 160 ff.
- 121.
On close examination, this conclusion also cannot be shared in absolute terms. Thus, penal order procedures, which are often traced back to the category of in absentia proceedings in a broad sense, raise serious concerns as to their consistency with Italian constitutional law. Furthermore, it is more than doubtful that the old default proceedings were in line with the Constitution, and serious doubts can be raise in relation to the new procedure for absent defendants introduced by Law 67/2014. For in-depth analysis of both issues see Ruggeri (2017), pp. 55 ff., 61 ff.
- 122.
BVerfG, decision of 15 December 2015, Az. 2 BvR 2735/14.
- 123.
Until now, constitutional case-law has availed itself of counter-limits in relation to international customary law. See Constitutional Court, judgment 238/2014, in www.cortecostituzionale.it. In January 2017, the Constitutional Court ruled on the well-known Taricco case by means of decision No. 24, in www.cortecostituzionale.it. Notwithstanding that there were great expectations about this decision, the Constitutional Court did not (immediately) invoke counter-limits but preferred to request a preliminary ruling by the EU Court of Justice. See Amalfitano (2017) and Kostoris (2017). On the ruling of the Luxembourg Court on the Taricco case of December 2017 see among others Bassini and Pollicino (2017). At the time of the present discussion, we are awaiting the ruling of the Italian Constitutional Court on this case.
- 124.
The Spanish Constitutional Tribunal, ruling on the amparo filed by Mr. Melloni in compliance with the judgment of the Luxembourg Court, explicitly referred to the doctrine of indirect infringement on fundamental rights. See STC 26/2014.
- 125.
For in-depth analysis of the relevance of the principle of non-discrimination in the field of fundamental freedoms, from the viewpoint of the passive personality principle, cf. Böse (2014), pp. 45 ff.
- 126.
For some guidelines for an accused-centred understanding of transnational investigation and prosecution see Ruggeri (2015), pp. 147 ff.
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Ruggeri, S. (2018). Criminal Investigations, Interference with Fundamental Rights and Fair Trial Safeguards in the Proceedings of the European Public Prosecutor’s Office. A Human Rights Law Perspective. In: Bachmaier Winter, L. (eds) The European Public Prosecutor's Office. Legal Studies in International, European and Comparative Criminal Law, vol 1. Springer, Cham. https://doi.org/10.1007/978-3-319-93916-2_11
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